Citation Nr: 1803867 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-30 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for cervical arthritis. 2. Entitlement to service connection for cervical spine degenerative joint disease (DJD) and degenerative disc disease (DDD) with scoliosis. 3. Entitlement to service connection for lumbar spine DJD and DDD with spinal stenosis and thoracic spine DDD. 4. Entitlement to service connection for left leg radiculopathy, to include as secondary to lumbar spine DJD and DDD with spinal stenosis and thoracic spine DDD. 5. Entitlement to service connection for right leg radiculopathy, to include as secondary to lumbar spine DJD and DDD with spinal stenosis and thoracic spine DDD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at an August 2017 videoconference Board hearing before the undersigned Veterans Law Judge (VLJ) in Denver, Colorado. A transcript of the hearing is of record. These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issues of entitlement to service connection for cervical spine DJD and DDD with scoliosis, service connection for lumbar spine DJD and DDD with spinal stenosis and thoracic spine DDD, and service connection for bilateral leg radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The RO denied the Veteran's service-connection claim for cervical arthritis in an August 1994 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year. 2. The evidence received since the August 1994 rating decision relates to an unestablished fact necessary to substantiate the Veteran's service-connection claim for a cervical spine disability. CONCLUSIONS OF LAW 1. The August 1994 rating decision denying entitlement to service connection for cervical arthritis is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (20.75). 2. New and material evidence has been received to reopen the claim of service connection for a cervical spine disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, neither the Veteran nor his representative raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. New and Material Evidence In August 1994, the RO denied service connection for cervical arthritis. The Veteran was advised of the decision and did not express timely disagreement with regard to this claim. Therefore, with regard to service connection for cervical arthritis, the August 1994 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Board has considered the applicability of 38 C.F.R. § 3.156(b) (2017), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for cervical arthritis was received within one year following the August 1994 rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO received the Veteran's petition to reopen the claim for service connection for a cervical spine disability in April 2011. Since the final decision in August 1994, the Veteran has indicated that he has had continuous neck pain following an in-service head injury and he was also afforded a VA examination in July 2011. The Board further finds that the evidence, presuming the credibility thereof for reopening purposes, is not only new, but also material because it supports a relationship between the Veteran's service and his cervical spine disability. ORDER The application to reopen a claim for service connection for a cervical spine disability is granted. REMAND The Board finds that further development is required before the claim is decided. The Veteran contends that he is entitled to service connection for cervical spine DJD and DDD with scoliosis. He asserts that these disabilities stem from an incident in service in which he suffered a head injury while in combat in Vietnam in 1968. The Veteran's DD Form-214 shows that he was awarded the Vietnam Service Medal and the Combat Action Ribbon during service which is evidence of participation in combat. The Board accordingly accepts the Veteran's report of this incident as consistent with the circumstances of his combat service. 38 U.S.C. § 1154(b). Therefore, the Board has to now consider whether the Veteran's current cervical spine disability is related to his in-service injury. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). The Veteran also contends that he is entitled to service connection for lumbar spine DJD and DDD with spinal stenosis and thoracic spine DDD, and entitled to service connection for bilateral leg radiculopathy, secondary to his cervical spine disability or lumbar spine disability. June 1968 service treatment records reflect that the Veteran sought treatment for headaches and neck stiffness. He was treated for tension headaches. The Veteran's June 1970 separation examination found his spine to be in normal condition. The Veteran was afforded a VA examination in July 1994. He told the examiner that tense situations sometimes led to secondary pain, particularly in his left shoulder, posterior head, and sometimes in his lower back and radiating down his left leg. He stated that he worked 10 - 12 hours a day operating a bobcat grader and that he experienced discomfort with his posture in that line of work. The Veteran was afforded an MRI of his head in November 2010. Aside from age change relationships, the results were unremarkable. The Veteran was afforded a VA examination in January 2011. He told the examiner that following separation, he ran heavy equipment to excavate basements for an excavation company, and then worked as a truck driver. He told the examiner that he injured his neck when he was hit by a 104 round while in service in Vietnam. He recalled the shell falling off and hitting his left forehead. He stated that he lost consciousness and was taken to the hospital with bleeding ears. He was told he had an ear infection. He reported that he had neck pain intermittently since that time, but that the pain had increased in recent years. He also told the examiner that he did not encounter any other trauma to his neck following service. The Veteran was afforded an additional VA examination in July 2011. He reiterated that his neck pain began with the 1968 incident in which he was hit by a 104 round during combat. In regards to his back, the Veteran told the examiner that he began to experience low back pain in the late 1960's. He said he did not have any injury or trauma to the area, and did not seek medical care until the 1980's. The Veteran denied any leg pain or radiculopathy, and the examiner found no evidence of radiculopathy during the examination. Following an examination, the examiner concluded that the Veteran's cervical and lumbar spine disabilities were unrelated to service, reasoning that a review of the claims file failed to show a link between present spine conditions and any event in service. The examiner did not provide an opinion as to whether or the Veteran's claimed bilateral leg radiculopathy was related to service because the disability was not present during the examination. During his August 2017 Board videoconference hearing, the Veteran testified that he had neck and back pain regularly since his time in the service. He also testified that he did have nerve issues or radiculopathy in his legs, which began around 2015, several years after he was provided a VA examination. If VA undertakes to provide an examination, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). The July 2011 examiner provided an opinion that it was less likely than not that the Veteran's cervical and lumbar spine disabilities were related to service as there was no evidence of the specific conditions in-service. However, the examiner failed to proffer an opinion regarding the Veteran's 1968 head injury, and the impact, if any, it would have had on his current spine disabilities. The examiner also failed to address the Veteran's reported continuous back pain since his time in service. As the opinion did not address all of the relevant evidence of record, it is insufficient for VA purposes. As such, the Board must remand the claim for a new opinion addressing the etiology of the claimed cervical and lumbar spine conditions. A determination concerning service connection for cervical and lumbar disabilities materially affects determinations with respect to claims for entitlement to service connection for right and left leg radiculopathy disabilities. As such, the Board finds these claims are inextricably intertwined, and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's cervical spine disability. The examiner should then provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or higher) that that any disability of the cervical spine incurred in or aggravated by service, to include the head injury sustained in 1968. A complete rationale for all opinions rendered should be provided. 2. Next, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's lumbar spine disability. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: Is it as likely as not (i.e., probability of 50 percent or higher) that any lumbar spine disability is related to an in-service disease, event, or injury? If the answer to the above is negative, is it as likely as not that a lumbar spine disability is proximately due to or the result of a service-connected disease or injury? The examiner must address the Veteran's reports of any continuous pertinent symptoms since service. 3. In the event service connection for a cervical spine disability or lumbar spine disability is granted, any further development deemed necessary with respect to the other claims on appeal should be conducted. 4. After the completion of any action deemed appropriate in addition to that requested above, the Veteran's claims should be readjudicated. If any benefit sought remains denied, the Veteran should be provided a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs